Open Courts Compendium

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I. Introduction: Access rights in the jurisdiction

A. The roots of access rights

In Oregon, First Amendment access rights are buttressed by Article I, section 10 of the Oregon Constitution, which provides, “No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay . . . .” This provision has been interpreted not to provide an individual, waivable right, but instead to prescribe the functions of government. See Oregonian Pub. v. O’Leary, 303 Or. 297, 301-02, 736 P.2d 173 (1987). The protection is not the same as that provided by the Sixth Amendment of the U.S. Constitution. See State ex rel Oregonian Pub. Co. v. Deiz, 289 Or. 277, 282, 613 P.2d 23 (1980). Article I, section 10 “does not recognize distinctions between various kinds of judicial proceedings; it applies to all.” Id. at 283. “In order to be constitutional, a proceeding must either not be secret or not ‘administer justice’ within the meaning of section 10.” O’Leary, 303 Or. at 302.

In addition, Oregon courts have adopted Uniform Trial Court Rules (UTCR) that apply to all Oregon trial courts. UTCR 3.180 expressly provides for camera access to courtrooms, with various exceptions. UTCR 3.180 (available at https://www.courts.oregon.gov/rules/UTCR/2017_UTCR_rules-sans-preface-including-out-of-cycle-amendments.pdf). The rule provides a presumption of access: “Upon request or on the court’s own motion, after notice to all parties, public access coverage shall be allowed in any courtroom, except as provided under this rule.” UTCR. 3.180 (1) (emphasis supplied). A judge may limit this access only after making findings of fact on the record and determining that the presence of equipment would interfere with the parties’ rights to a fair trial, or that the cost or increased burden would interfere with the aims of justice. UTCR 3.180(3). Other portions of the rule allow the court to limit placement and function of cameras and to limit the equipment to pool cameras. UTCR 3.180(7).

B. Overcoming a presumption of openness

In Oregon, a proceeding may be closed where the proceeding is not an adjudication, or where the proceeding was traditionally closed prior to the adoption of the Oregon Constitution. See Oregonian Publishing Co. v. O’Leary, 303 Or. 297, 303, 736 P.2d 173 (1987).

II. Procedure for asserting right of access to proceedings and records

A. Media standing to challenge closure

The media has standing to challenge closure. Oregonian Publ’g Co. v. O'Leary, 303 Or. 297, 301-02, 736 P.2d 173 (1987) (“Members of the media and public may benefit from, and assert in court in their own behalf, the prohibition [of the Oregon Constitution] on secret courts . . . .”).

B. Procedure for requesting access in criminal cases

The Oregon Supreme Court, in Oregonian Publ’g Co. v. O'Leary, 303 Or. 297, 301-02, 736 P.2d 173 (1987), held that “[m]embers of the media and public may . . . assert in court in their own behalf . . . [the open courts requirement of the Oregon Constitution].” Typically, access is requested through informal channels. Where particular hearings are closed, parties may resort to intervention.

D. Obtaining review of initial court decisions

III. Access to criminal proceedings

A. In general

In Oregon, access rights are guaranteed by Article I, section 10 of the Oregon Constitution, which provides that “[n]o court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay . . . .” This provision has been interpreted not to provide an individual, waivable right, but instead to prescribe the functions of government. See Oregonian Publ’g v. O’Leary, 303 Or. 297, 301-02, 736 P.2d 173 (1987). The protections of Article I, section 10 are absolute. State v. Jackson, 178 Or. App. 233, 236-37, 36 P.3d 500 (2001).

Article I, section 11 of the Oregon Constitution provides the accused a right to a public trial. This right can be overcome by a showing of substantial need presented by the state, and this right may also be waived by the accused. See generally State v. Jackson, 178 Or. App. 233, 236-37, 36 P.3d 500 (2001). However, the intersections of the absolute protections provided by Article I, section 10, and the protections that may be overcome or waived, provided by section 11, are not precisely delineated. Id. at 237. (“There exists some question as to whether the protections of these two provisions are coextensive in criminal proceedings. Also, case law does not make it entirely clear whether the ‘absolute’ nature of the Article I, section 10, public right can, in fact, mandate that a criminal proceeding be open to the public in circumstances where an individual defendant's Article I, section 11 right might otherwise be circumscribed after a showing of substantial need by the state.”).

However, Oregon courts have closed pretrial competency hearings for minors. State v. Romel, 57 Or. App. 372, 375, 644 P.2d 643 (1982). Oregon’s rape shield law has survived two challenges to its constitutionality under Article I, section 10 of the Oregon Constitution. See State ex rel Davey v. Frankel, 312 Or. 286, 823 P.2d 394 (1991) (holding that a law requiring review to be “in chambers” does not necessarily exclude the public); State v. Blake, 53 Or. App. 906, 633 P.2d 831 (1981) (holding that a law excluding the public from hearings regarding sexual history was constitutional), review allowed 291 Or. 893, 642 P.2d 309, appeal dismissed 292 Or. 486, 640 P.2d 605 (dismissing appeal where the legislature enacted the law construed in Davey). Oregon’s current rape shield law, ORS 40.210, explicitly excludes the public from review of evidence of prior sexual history, and the Oregon Supreme Court upheld its constitutionality in State v. Macbale, 353 Or. 789, 809, 305 P.3d 107, 119 (2013) (concluding that “a hearing to determine the admissibility of evidence under [ORS 40.210] does not constitute an administration of justice for purposes of Article I, section 10, and that the legislature may provide that such a hearing be closed to the public”).

C. Criminal trials

In Oregon, access to criminal trials is protected by Article I, section 10 of the Oregon Constitution. Oregon courts have held that this protection applies even during the testimony of a minor victim in a sex offense trial. State v. Bowers, 58 Or. App. 1, 646 P.2d 1354 (1982); see also Globe Newspaper Co., 457 U.S. 596 (1982) (holding that mandatory court closure for rape trials with minor victims violates the First Amendment, where case-by-case closure decisions could satisfy state interests). In Oregon, all judicial proceedings are open, with the exception of jury deliberations and “conferences of collegial courts.” State ex rel Oregonian Pub. Co. v. Deiz, 289 Or. 277, 284-85, 613 P.2d 23 (1980). However, courts may control access “by members of the press or public who would attempt to interfere in the proceedings or otherwise obstruct the proceedings.” Id.

D. Post-trial proceedings

No Oregon court has specifically addressed access to post-trial proceedings. However, the Oregon Constitution provides a presumption of access unless the proceeding is not an adjudication, or where the proceeding was traditionally closed prior to the adoption of the Oregon Constitution. See Oregonian Publishing Co. v. O’Leary, 303 Or. 297, 303, 736 P.2d 173 (1987).

E. Appellate proceedings

No Oregon court has specifically addressed access to appellate proceedings. However, the Oregon Constitution provides a presumption of access unless the proceeding is not an adjudication, or where the proceeding was traditionally closed prior to the adoption of the Oregon Constitution. See Oregonian Publishing Co. v. O’Leary, 303 Or. 297, 303, 736 P.2d 173 (1987).

IV. Access to criminal court records

A. In general

Public records and meetings are governed by ORS Chapter 192. In Oregon, subject to certain restrictions, “[e]very person has a right to inspect any public record of a public body[.]” ORS 192.314. Public records include “any writing that contains information relating to the conduct of the public’s business, including but not limited to court records . . . .” ORS 192.311(4)(a). Public bodies include state agencies, ORS 192.311(4), and state agencies include courts. ORS 192.311(6).

Article I, section 10 of the Oregon Constitution arguably provides access to court records as well. Although the Oregon Supreme Court has not published an opinion on the issue, the Court has considered it. In A.K.H. v. R.C.T., a U.S. District Court certified a question to the Oregon Supreme Court and transferred sealed court records to the Oregon Supreme Court at the same time. The defendant in the matter requested that those documents, which were under seal in a related federal court case, remain under seal at the Oregon Supreme Court. The Oregon Supreme Court declined, citing Article I, section 10. See Multnomah County Attorney Reference Manual 27 (2008) (citing A.K.H. v. R.C.T., Supreme Court Case 37202 (1990)).

However, Oregon excludes from disclosure various categories of information. These exclusions are listed in ORS 192.345 and 192.355. Notable exceptions from disclosure include public records pertaining to litigation, ORS 192.345(1), “investigatory information compiled for criminal law purposes,” ORS 192.345(3), and public records otherwise made confidential under Oregon law, ORS 192.355(9)(a).

B. Arrest records

Despite the exception that prevents the disclosure of “investigatory information compiled for criminal law purposes” contained in ORS 192.345(3), the Oregon Public Records Law does allow for the release of arrest records. ORS 192.345 (3).

To obtain a criminal history in Oregon,

apply in writing to the Bureau of Criminal Identification of the Oregon State Police in Salem, identifying as clearly as possible the person about whose record the inquiry is being made. The Bureau will give that person 14 days’ notice that an inquiry is being made about him. The delay is intended to give the person an opportunity to exercise his or her right to inspect his or her own criminal history and to have it corrected if it is wrong. At the end of the 14 days, the Bureau will send to the person making the inquiry, information it may have about (a) any conviction of the subject in Oregon, and (b) any arrest in Oregon that is less than one year old and on which there has been no acquittal or dismissal. Included will be information on felonies, on any offense involving sexual misconduct, and on certain drug violations. Records of other misdemeanors will not be reported.

Open-Oregon, Media Handbook on Oregon Law and Court System (2000), http://www.open-oregon.com/wp-content/uploads/2010/11/Media-Guide.pdf.

C. Dockets

ORS 7.130 provides that “[w]henever requested, the clerk or court administrator shall furnish to any person a certified copy of any portion of the records or files in the custody of the clerk or court administrator.” Records include registers. ORS 7.010.

The register is a record wherein the clerk or court administrator shall enter, by its title, every action, suit or proceeding commenced in, or transferred or appealed to, the court, according to the date of its commencement, transfer or appeal. Thereafter, the clerk or court administrator shall note therein all the following:

(1) The date of any filing of any document.

(2) The date of making, filing and entry of any order, judgment, ruling or other direction of the court in or concerning such action, suit or proceeding.

E. Discovery materials

F. Pretrial motions and records

G. Trial records

H. Post-trial records

I. Appellate records

J. Other criminal court records issues

The Oregon Supreme Court has held that the First Amendment does not provide for public access to jury pool records, though the question was not analyzed under the Oregon Constitution. See Jury Service Resource Center v. De Muniz, 340 Or. 423, 435, 134 P.2d 948 (2006) (analyzing the protection provided by the First Amendment).

B. Pre-trial proceedings

No Oregon court has specifically addressed access to pretrial civil proceedings. However, the Oregon Constitution provides a presumption of access unless the proceeding is not an adjudication, or where the proceeding was traditionally closed prior to the adoption of the Oregon Constitution. See Oregonian Publishing Co. v. O’Leary, 303 Or. 297, 303, 736 P.2d 173 (1987).

C. Trials

D. Post-trial proceedings

No Oregon court has specifically addressed access to post-trial proceedings. However, the Oregon Constitution provides a presumption of access unless the proceeding is not an adjudication, or where the proceeding was traditionally closed prior to the adoption of the Oregon Constitution. See Oregonian Publishing Co. v. O’Leary, 303 Or. 297, 303, 736 P.2d 173 (1987).

E. Appellate proceedings

No Oregon court has specifically addressed access to appellate proceedings. However, the Oregon Constitution provides a presumption of access unless the proceeding is not an adjudication, or where the proceeding was traditionally closed prior to the adoption of the Oregon constitution. See Oregonian Publishing Co. v. O’Leary, 303 Or. 297, 303, 736 P.2d 173 (1987).

VI. Access to civil records

A. In general

In Oregon, subject to certain restrictions, “Every person has a right to inspect any public record of a public body[.]” ORS 192.314. Public records include “any writing that contains information relating to the conduct of the public’s business, including but not limited to court records . . ..” ORS 192.311(5)(a). Public bodies include state agencies, ORS 192.410(4), and state agencies include courts. ORS 192.311(6).

Article I, section 10 of the Oregon Constitution arguably provides access to court records as well. Though the Oregon Supreme Court has not published an opinion on the issue, the Court has considered it. In A.K.H. v. R.C.T., a U.S. District Court certified a question to the Oregon Supreme Court and transferred sealed court records to the Oregon Supreme Court at the same time. The defendant in the matter requested that those documents, which were under seal in a related federal court case, remain under seal at the Oregon Supreme Court. The Oregon Supreme Court declined, citing Article I, section 10. See Multnomah County Attorney Reference Manual 27 (2008) (citing A.K.H. v. R.C.T., Supreme Court Case 37202 (1990)) .

However, Oregon excludes from disclosure various categories of information. These exclusions are listed in ORS 192.345 and 192.355. Notable exceptions from disclosure include public records pertaining to litigation, ORS 192.345(1), and public records otherwise made confidential under Oregon law, ORS 192.355(9)(a).

B. Dockets

ORS 7.130 provides that “[w]henever requested, the clerk or court administrator shall furnish to any person a certified copy of any portion of the records or files in the custody of the clerk or court administrator.” Records include registers. ORS 7.010.

The register is a record wherein the clerk or court administrator shall enter, by its title, every action, suit or proceeding commenced in, or transferred or appealed to, the court, according to the date of its commencement, transfer or appeal. Thereafter, the clerk or court administrator shall note therein all the following:

(1) The date of any filing of any document.

(2) The date of making, filing and entry of any order, judgment, ruling or other direction of the court in or concerning such action, suit or proceeding.

E. Trial records

F. Settlement records

G. Post-trial records

H. Appellate records

I. Other civil court records issues

The Oregon Supreme Court has held that, while Oregon courts embrace the “principle of open justice,” the public may not necessarily access evidence introduced in a proceeding. Jack Doe 1 v. Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints, 352 Or. 77, 100, 280 P.3d 377, 390 (2012) (holding that “the constitutional right to an open court does not create . . . a right in every observer, at the end of a court proceeding, to obtain the release of the evidence admitted or not admitted during the proceeding”). Along those lines, the Oregon Supreme Court has ruled that the Oregon Constitution does not provide a right for a television station to copy a videotaped deposition that was played in court in a civil trial and submitted as evidence. State ex rel KOIN-TV Inc., v. Olsen, 300 Or. 392, 410, 711 P.2d 966 (1985).

VII. Jury and grand jury access

A. Access to voir dire

B. Juror identities, questionnaires and other records

ORS 10.215(1) provides that “[e]xcept as specifically provided by law, the State Court Administrator and circuit courts may not disclose source lists obtained from any person or public body, and jury lists containing names selected from a source list, to any other person or public body.”

C. Grand jury proceedings and records

No Oregon court has specifically addressed access to grand jury proceedings. However, the Oregon Constitution provides a presumption of access unless the proceeding is not an adjudication, or where the proceeding was traditionally closed prior to the adoption of the Oregon Constitution. See Oregonian Publishing Co. v. O’Leary, 303 Or. 297, 303, 736 P.2d 173 (1987). Because grand jury proceedings were not traditionally open to the public, it is likely that Oregon courts would deny access.

Records of grand jury indictments may be designated as confidential by the district attorney and, when designated, will remain so until the arrest of the defendant. ORS 132.410.

D. Interviewing jurors

VIII. Proceedings involving minors

Because of the robust access provisions provided by the Oregon Constitution, juvenile proceedings are open to the public and the media. See generally, State ex rel Oregonian Pub. Co. v. Deiz, 289 Or. 277, 613 P.2d 23 (1980) (striking down as invalid under the Oregon Constitution a statute that allowed judges to exclude the press from juvenile court proceedings). However, camera access may not be allowed in juvenile proceedings. See infra section XI.

In general, records of juvenile proceedings are not available. In Oregon, juveniles are not “arrested,” but are taken into custody. Thus, the provisions of ORS 192.345(3) allowing for disclosure of arrest records do not apply to juveniles. In addition, juvenile court records are governed by ORS 419A.255, which makes those records confidential and privileged but allows copies to be provided to attorneys of the child. See also Oregonian Publ'g Co., LLC v. Waller, 253 Or. App. 123, 132, 293 P.3d 1046, 1051 (2012) (observing that the legislature did not intend to require public access to juvenile court records by extending the Oregon Public Records Law to court records generally).

A. Delinquency

B. Dependency

C. Other proceedings involving minors

D. Prohibitions on photographing or identifying juveniles

E. Minor testimony in non-juvenile courts

In Oregon, First Amendment access rights are buttressed by Article I, section 10 of the Oregon Constitution, which provides that “[n]o court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay . . . .” This provision has been interpreted not to provide an individual, waivable right, but instead to prescribe the functions of government. See Oregonian Pub. v. O’Leary, 303 Or. 297, 301-02, 736 P.2d 173 (1987).

IX. Special proceedings

A. Tribal Courts in the jurisdiction

B. Probate

C. Competency and commitment proceedings

D. Attorney and judicial discipline

Oregon Bar disciplinary proceedings are open to the public. The Oregon State Bar is subject to both the public meeting and public records laws of Oregon. ORS 9.010. Furthermore, the bylaws of the Oregon Bar provide that disciplinary proceedings are open to the public. Oregon State Bar Bylaws 8.201(a) (2017), http://www.osbar.org/_docs/rulesregs/bylaws.pdf.

The Oregon Supreme Court has not directly addressed access to judicial proceedings regarding attorney discipline. However, access to those proceedings is likely protected by Article I, section 10 of the Oregon Constitution because “[t]he disposition by [the Oregon Supreme Court] of disciplinary matters is the performance of a public trust and, as such, is the public's business and should not be disposed of in other than a public manner.” In re Alley, 256 Or. 51, 54-55, 470 P.2d 943 (1970).

E. Immigration proceedings

F. Other proceedings

X. Restrictions on participants in litigation

A. Media standing to challenge third-party gag orders

B. Gag orders on the press

C. Gag orders on participants

D. Interviewing judges

XI. Other issues

A. Interests often cited in opposing a presumption of access

Those seeking to oppose access under Article I, section 11 of the Oregon Constitution must make a “substantial showing of need.” State v. Bowers, 58 Or. App. 1, 4, 646 P.2d 1354 (1982). Because the protections under Article I, section 10 are intended to be absolute, it is unclear what types of arguments would be advanced to overcome the access provided therein. State v. Jackson, 178 Or. App. 233, 237, 36 P.3d 500 (2001) (“[C]ase law does not make it entirely clear whether the ‘absolute’ nature of the Article I, section 10, public right can, in fact, mandate that a criminal proceeding be open to the public in circumstances where an individual defendant's Article I, section 11, right might otherwise be circumscribed after a showing of substantial need by the state.”).

While Oregon Rule of Civil Procedure 36C allows a judge to issue protective orders to protect trade secrets, there is no published Oregon decision finding authority for closure of a court to protect trade secrets. UTCR 3.180 does provide for the denial of cameras and audio/video equipment where the proceedings concern trade secrets. UTCR 3.180(2)(c).

Oregon’s rape shield law has survived two challenges to its constitutionality under Article I, section 10 of the Oregon Constitution. See State ex rel Davey v. Frankel, 312 Or. 286, 823 P.2d 394 (1991) (holding that a law requiring review to be “in chambers” does not necessarily exclude the public); State v. Blake, 53 Or. App. 906 (1981) (holding that a law excluding the public from hearings regarding sexual history was constitutional), review allowed, 291 Or 893, 642 P.2d 309, appeal dismissed, 292 Or. 486, 640 P.2d 605 (dismissing appeal where the legislature enacted the law construed in Davey). Oregon’s current rape shield law, ORS 40.210, explicitly excludes the public from review of evidence of prior sexual history and has not been tested in court.

B. Cameras and other technology in the courtroom

Oregon courts have adopted Uniform Trial Court Rules (UTCR) that govern Oregon courtrooms. Uniform Trial Court Rule 3.180 provides for camera access to courtrooms, with various exceptions. The rule provides a presumption for access: “Upon request made prior to the start of a proceeding, and after notice to all parties, electronic recording [which includes video and audio recording] shall be allowed in any courtroom, except as provided under this rule. The court shall permit one video camera, one still camera and one audio recorder. The court may permit additional electronic recording consistent with this rule.” UTCR. 3.180(2) (emphasis supplied).

A judge may limit this access only after making findings of fact on the record and determining that the presence of equipment would interfere with the parties’ rights to a fair trial, or that the cost would interfere with the aims of justice. UTCR 3.180(4). Other portions of the rule allow the court to limit placement and manner of operating electronic equipment and limit the equipment to pool cameras. UTCR 3.180(10). Rule 3.180 can be found at https://www.courts.oregon.gov/rules/UTCR/2018_UTCR_ch3.pdf.

C. Tips for covering courts in the jurisdiction

Oregon has a Supreme Court, a Court of Appeals, and various circuit courts. Circuit courts are courts of general jurisdiction, including juvenile and probate jurisdiction. See ORS 3.260; 111.055. Circuit court decisions can be appealed to the Court of Appeals, and Court of Appeals decisions may be appealed to the Supreme Court.

Oregon has various other courts, including both municipal and justice courts. Municipal courts are created by city charters and decisions may be appealed to circuit courts. Justice courts are created by counties. In some areas, Oregon has county courts that handle juvenile or probate matters. See ORS 3.260; 111.055. County court decisions can be appealed to the circuit court.

Oregon also has a tax court to handle tax claims, and a Land Use Board of Appeals (LUBA), which governs land-use disputes. Tax court decisions can be appealed to the Oregon Supreme Court. LUBA decisions can be appealed to the Court of Appeals.

In most trial court matters, proceedings are documented by audio recording, unless the parties hire a court reporter and obtain a court order designating the reporter’s transcript as the official record. Audio recordings and transcripts can generally be obtained by contacting the records clerk for the specific trial court. If the parties did not pay the required hearing fee, the court typically still records the hearing, but it is possible that the court will refuse to release the audio recording until the fee is paid.